State Legislature Adds Juvenile Records to Prohibition on Criminal History Discrimination in Employment

Criminal history can be a major stumbling block to finding a job. Employers may not want to hire people with criminal records for a variety of reasons, but state and city laws in New York City prohibit discrimination based on criminal history, with only a few exceptions. “Criminal history” is a broad category that includes records of arrests, charges, convictions, probation, incarceration, and parole. Neither New York nor New York City laws specifically mention records of juvenile offenses. A new law that took effect in California at the beginning of 2017 expressly adds juvenile records to that state’s criminal history discrimination law. Juvenile records in New York are sealed as a matter of law, so this might not be an issue of serious concern in this state.

New York law limits the ability of employers to consider criminal history during the hiring process. Article 23-A of the Corrections Law, N.Y. Corr. L. § 750 et seq., prohibits public and private employers from discriminating on the basis of criminal history, with two exceptions: (1) if an individual’s criminal record has a direct bearing on a specific job, or (2) if that individual’s history presents a significant risk to the safety of certain people or the public. If an employer makes an adverse decision based on an applicant’s or employee’s criminal history, Art. 23-A requires the employer to notify them in writing and give them an opportunity to respond.

Under the New York State Human Rights Law (NYSHRL), a violation of Art. 23-A may constitute an “unlawful discriminatory practice.” N.Y. Exec. L. § 296(15). The New York City Human Rights Law (NYCHRL) adopts this provision of the NYSHRL, specifically citing Art. 23-A. It also prohibits employers from stating in job advertisements that a position is limited to people with no criminal record, and it bars employers from asking an applicant about criminal history until they have made a conditional offer of employment. N.Y.C. Admin. Code §§ 8-107(9)(a)(3) – (5).

Many criminal records are part of the public record, meaning that members of the public can access records without having to obtain permission from the subject of the records or a court. Court records are often open for inspection by people who visit the clerk’s office, and many law enforcement records are obtainable through an open records request. All of these records may come up in a criminal background check, but this only applies to criminal history for adults.

Minors are, in general, not subject to the same criminal laws or procedures as adults. The juvenile justice system in New York tends to focus on rehabilitation rather than punishment. As a result, most records in juvenile cases are sealed, meaning that they are not available to the public without a court order. This includes both juvenile proceedings in family court, which generally apply to minors under the age of 16, and proceedings for “youthful offenders,” defined as individuals who are at least 16 years old but no older than 18. SeeN.Y. Crim. Pro. L. §§ 720.15, 725.15.

The criminal conviction discrimination attorneys at Phillips & Associates advocate on behalf of job applicants, employees, and former employees in New York City in claims for unlawful employment practices under the laws of New York City, the State of New York, and the United States of America. To schedule a free and confidential consultation to discuss your case with a member of our team, contact us today online or at (212) 248-7431.

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